European Travel Agency Corp. v. Allstate Insurance Company

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 5 2023

MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

EUROPEAN TRAVEL AGENCY CORP., a No. 22-56144 California Corporation; et al.,

D.C. No.

Plaintiffs-Appellants, 2:22-cv-01141-DSF-KS v.

MEMORANDUM* ALLSTATE INSURANCE COMPANY, an Illinois Corporation,

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California Dale S. Fischer, District Judge, Presiding Submitted October 3, 2023** Pasadena, California

Before: GRABER, MENDOZA, and DESAI, Circuit Judges.

Plaintiffs, who are persons and businesses insured by Defendant Allstate Insurance Co., timely appeal the district court’s dismissal of their claims arising out of an insurance contract. Plaintiffs assert that Defendant must pay for losses

*

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. arising from the COVID-19 pandemic and the resulting governmental shut-down orders. But the relevant insurance policy contains a virus-exclusion provision that bars coverage for “loss or damage caused by or resulting from any virus, bacterium or other microorganism that induces or is capable of inducing physical distress, illness or disease.” Reviewing de novo, Mudpie, Inc. v. Travelers Cas. Ins. Co. of Am., 15 F.4th 885, 889 (9th Cir. 2021), we affirm.

The district court correctly held that the virus-exclusion provision precludes Plaintiffs’ claims. We held in Mudpie that a nearly identical provision precluded similar claims. 15 F.4th at 893–94; accord Musso & Frank Grill Co. v. Mitsui Sumitomo Ins. USA Inc., 293 Cal. Rptr. 3d 1, 6–7 (Ct. App. 2022). As in Mudpie, Plaintiffs have not alleged plausibly that “the efficient cause” of Plaintiffs’ losses was anything other than the spread of COVID-19 throughout California. 15 F.4th at 894 (citation omitted). Plaintiffs argue that Mudpie misapplied California law, but we are bound by Mudpie. Miller v. Gammie, 335 F.3d 889, 899–900 (9th Cir. 2003) (en banc).

We need not, and do not, reach any other arguments raised by the parties. AFFIRMED.